Global Security: Israel and the Occupied Palestinian Territories - Foreign Affairs Committee Contents

Examination of Witnesses (Questions 69-79)


11 FEBRUARY 2009

  Q60 Chairman: What plea would be relevant?

Professor Scobbie: It would be, in that case, that they were taking defensive or offensive action. They would be doing what people do in an armed conflict, which is to fight one another.

  Q61 Chairman: What if the British Government put out a statement, as the Foreign Secretary did, or as the Americans have done, that Israel has a right to self-defence?

  Professor Scobbie: I would say that they were not using it in a very strict legal sense. It is like the difference between negligence in law and negligence in everyday speech. Negligence in law does not mean carelessness. Self-defence is the same. It is a very narrow legal doctrine. It is better that it is not disrupted.

  Q62 Sir John Stanley: Professor, I want to come to two specific weapons on which allegations have been made that they may have been used by the Israelis in the war contrary to international law. You refer to the fact that the Israelis are not signatories to the Protocol to the Convention on Certain Conventional Weapons, which is the protocol on prohibitions or restrictions on the use of certain incendiary weapons, which is Protocol III, and that is the one that governs the use of white phosphorus. Foreign Office paper GSME(G)01 on international law and white phosphorus is very clear. It says: "It is prohibited in all circumstances to make the civilian population as such, individual civilians or civilian objects the object of attack by incendiary weapons." Against that background, and recognising that the Israelis regrettably have not signed this protocol, there does appear to be very clear evidence that white phosphorus was used against civilians. If I can just give one specific example, in the detailed analysis that was made in The Independent on Sunday on 25 January, reference is made to the case of an 18-year-old high-school student, Mahmoud al-Jamal, who was hit by what apparently looks like a phosphorus shell. He was taken into the Gaza City Shifa hospital severely burned, and it is reported that part of his body was still smouldering when he was being anaesthetised in theatre. The head of the burns unit in the hospital, Dr Nafez abu Shaban, is quoted as saying: "A piece extracted itself from his body and burned the anaesthetist on his chest." That would appear to be very clear corroboration by a top medical surgeon of white phosphorus being inside this young man's body and falling on to an adjacent body and burning it. On the basis of this evidence, and indeed plenty more, do you accept that there appears to have been clear use of white phosphorus against civilians in this recent war?

  Professor Scobbie: There may be use of white phosphorus. That does not necessarily mean it is illegal, or that the use is illegal. It depends on the circumstances of the use. White phosphorus is not in itself an incendiary weapon as that is understood in international law, because an incendiary weapon is one whose primary purpose is to cause damage or injury through burning. White phosphorus can be lawfully used as an illuminant or as a smokescreen to cover troop movements. Its primary function is not as an incendiary weapon. What we really have to go to here are the rules on collateral damage and indiscriminate use of weapons. That really boils down to the circumstances in which these weapons were used as to whether that is unlawful or not as a matter of the laws of armed conflict. If you want to take it further and ask, even if we assume there is a breach of the laws of armed conflict, does that constitute an international crime, that is a whole different ball game, because then you have to prove the characteristic aspects of any criminal offence, which is the act and the mental intention. And that really does not answer your question, does it?

  Q63 Sir John Stanley: Well, thank you for giving us the legal view. I want to turn to another weapon, and this is in relation to a protocol which the Israeli Government have signed. This is the UN convention which prohibits "the use of any weapon, the primary effect of which is to injure by fragments which, in the human body, escape detection by X-rays." These are the so-called DIME weapons—the acronym for dense inert metal explosive. These weapons are effectively a stealth method of killing. The victim dies, but no fragments detectable by X-rays are left in the victim's body. Again, I am struck by another doctor, also in that Shifa hospital, a surgeon. He is quoted as saying, "We have many cases of amputations and vascular reconstructions where patients would be expected to recover in the normal way. But to our surprise, many of them died an hour or two after the operation. It is traumatic." Have you any comments on why patients who should have recovered from surgery, apparently for some unexplained reason, suddenly died?

  Professor Scobbie: No, because I am not a medical doctor. I think the point to emphasise there is the phrase you brought up at the start: indiscriminate use. The legality of weapons use depends on the circumstances.

  Q64 Sir John Stanley: Do you agree that the Israeli Government are a signatory to this convention, and therefore have legally signed up not to use DIME weapons?

  Professor Scobbie: They are a signatory to that protocol, yes.

  Q65 Sir John Stanley: Therefore, if, possibly and probably, given the nature of these weapons, it could be shown that they had used DIME weapons, that would be in breach of international law?

  Professor Scobbie: If they had been used indiscriminately.

  Sir John Stanley: Indiscriminately or at all?

  Professor Scobbie: I think it is indiscriminate use. I am pretty sure, but give me a minute and I can check.

  Chairman: Perhaps you could send us a note.[5]

  Q66 Sir John Stanley: This is very important: it would be very worrying if there was an "indiscriminate" test, because these weapons, I would have thought, by their very nature are extremely immoral, in so far as they make it impossible to detect the source of the killing.

  Professor Scobbie: Yes, but I think it boils down to the law of armed conflict. It is all about the law that regulates killing people and blowing things up. That is why it is better not to call it international humanitarian law, because there is very little in that body of law that is humanitarian, apart from some basic general principles of minimising suffering.

  Q67 Sir John Stanley: May I lastly ask you a general question in relation to the conduct of both sides in this recent conflict in Gaza? From where you stand, from a legal standpoint, are there any areas of international law that you consider may have been breached either by the Israelis or by Hamas?

  Professor Scobbie: Yes. Let us start with stuff coming out of Gaza. The nature of the missiles that are launched is indiscriminate, so I would say that is a breach of international law. A probable breach by the Israelis—again on which there is a degree of scholarly consensus among international lawyers—is the targeting of police. The police in Gaza—although some, but probably not all, were members of Hamas—were not part of the military wing. There is a presumption almost that police are civilians. So when, for instance, Israel attacked the graduation parade of police in Gaza, that would be seen as a direct attack on the civilian population. From what I can gather from various reports in the Israeli press, that type of attack on police forces was an issue which caused controversy among the legal advisers to the IDF.

  Q68 Sir John Stanley: In an earlier session, which I think you were listening to—

  Professor Scobbie:  I only caught the end of it.

  Sir John Stanley: What about the loss of life of over 400 children and 100 women?

  Professor Scobbie: That boils down to whether those deaths were excessive in relation to the military objective being sought in the given attack. It is down to circumstances and the need for hard evidence.

  Q69 Chairman: The UN Secretary-General described the Israeli action as disproportionate. The Israeli Prime Minister also referred to the fact that Israel would respond disproportionately at some point. Does the word disproportionate have a specific legal significance? Does military action not have to be disproportionate in order to comply with international law?

  Professor Scobbie: Yes, the word does have a legal significance. In some ways it is the lynchpin of the law regarding self-defence, which I have argued does not apply here. Actions taken in self-defence must be proportionate. That is also the key to the application of the targeting rules and the laws of armed conflict. The basic rule regarding an attack on a military objective is that the effects on the civilian population must not be disproportionate in relation to the military advantage anticipated. That boils down to the fact that damage done to civilian property and civilians must not be excessive in relation to the military advantage anticipated by a given attack.

  Q70 Chairman: Who is to make that judgment? Is it the judgment of the military commanders on the ground, or is there some outside judgment? Who decides whether something is excessive or not?

  Professor Scobbie: Initially it is the military commander on the ground. That does not preclude subsequent verification by an international fact-finding team, for instance. There is provision for that in Additional Protocol I, although Israel is not a party to that. The first stage of the Gaza conflict looked very much like Israel's practice regarding targeted killings, which it has done in the past in both the West Bank and in Gaza. Missile strikes were sent in essentially to kill particular individuals. That policy was litigated before the Israel High Court and in its decision, the High Court said that proportionality depends on the circumstances. Each of those attacks had to be proportionate, and there had to be an ex post facto and independent investigation into whether that was the case. In the Targeted Killings case, the Israel High Court gave an example. It gave an almost implicit ruling that a targeted killing in Gaza had been disproportionate. It said, "Take the usual case of a combatant, or a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate, even if as a result, an innocent civilian neighbour or passerby is harmed ... However, that is not the case if the building is bombed from the air, and scores of its residents and passersby are harmed." Aharon Barak, then President Emeritus [of the High Court], went on to say that there has to be independent verification after the fight. If we look at the first phase before troops were sent in on the ground, it looked like a classic and concerted targeted killings campaign.

  Q71 Mr Moss: You answered the question that I was going to pose. Perhaps you could go over the ground again for clarification purposes. If fire is emanating in this military conflict from a building, civilian or otherwise, it is legitimate to fire back on that location as a target. Whether it destroys a civilian house is irrelevant. The firing emanated from that source.

  Professor Scobbie: Yes, provided that any collateral damage to civilians would not be excessive.

  Q72 Chairman: You are talking about a conflict in a very densely populated area and, following on from what Malcolm said, Hamas was in those houses in that area. How can Israel respond to firing from those densely populated areas and hit those areas without killing large numbers of civilians?

  Professor Scobbie: That would depend on the tactics that are employed by the IDF. When Israel and the US make proportionality or collateral damage calculations, they take into account force protection—the idea that military casualties must be minimised. What you had in Gaza was, to a great extent, a long-range campaign where the IDF did not go into close combat. Where we are dealing with a long-distance campaign we can expect that civilian casualties will be higher. One way to minimise that would have been to go into close combat.

  Chairman: Which is what happened at a later stage.

  Professor Scobbie: At a later stage, yes.

  Q73  Chairman: What about the distinction between Hamas fighters and people in the community as a whole? If you are fighting an organisation where people do not necessarily have uniforms when they are engaged in military action, is there any distinction about the response to that? Is anybody who has taken up arms, whether they are wearing a uniform or some other distinction, treated differently in terms of response?

  Professor Scobbie: Civilians who take a direct part in hostilities are legitimate targets. Now, there is the question of what actually amounts to a civilian taking a direct part in hostilities. This is an area that is quite controversial on some points and is under examination at the moment by a joint programme with the International Committee of the Red Cross and the TMC Asser Institute in the Netherlands. We expect and hope to see some guidelines coming out of their expert groups fairly soon. Now, if a civilian takes a direct part in hostilities, he or she is a legitimate target and he or she loses civilian immunities. It also means that, on capture, they are not entitled to prisoner-of-war status.

  Q74  Chairman: This is the Guantanamo problem.

  Professor Scobbie: I think that the Guantanamo problem took that one to extremes.

  Chairman: Yes.

  Q75  Sir John Stanley: Professor, there appear to have been a very large number of cases where those on the ground have maintained that there were, in fact, no Hamas fighters present in particular buildings that were the subject of Israeli shellfire and in which civilians were killed. That happened to the UN building. A Palestinian gynaecologist was interviewed in detail on "Panorama" last night. When the Israelis fired a tank shell—which I think killed four of his eight children as they were doing their homework—into their flat, he was absolutely clear that there were no Hamas there. There was the father of The Independent's reporter in Gaza, who was destroyed alone in his farmhouse near the border, and any number of others. The point of law that I am asking you is, will it be contrary to international law to destroy a building containing civilians, if there were no terrorist presence or military figures opposing you in that building at the time you shelled it?

  Professor Scobbie: In principle, no, but it is subject to one caveat which might be—

  Q76  Sir John Stanley: I am asking: would it be contrary to international law?

  Professor Scobbie: I am sorry; in that case I mean yes, subject to one caveat: if the building was seen as one whose destruction or denial was seen to have some concrete and direct military advantage. If it was a building which might, for instance, be used as a spy post later on there are circumstances in which it could be destroyed even if there were no fighters present. But then the question would be, does it cause excessive civilian damage?

  Q77 Mr Illsley: Let me ask the same question, but from a slightly different angle. If Hamas fighters go into a building that is occupied by civilians, does it become a military target?

  Professor Scobbie: In principle yes, but again we need to go back to the collateral damage calculation.

  Q78 Mr Illsley: So it is a question of the proportionality of the response in using the weapon to attack that target?

  Professor Scobbie: Yes.

  Q79 Mr Heathcoat-Amory: May I ask whether international law has grappled with the problem of suicide bombing? It is perhaps the most ghastly of all modern weapons, and there is some evidence, in Israel and more generally in the Middle East, that suicide bombers are under the control of an organising power or organisation. If that were shown to be the case, would that organisation be guilty of a war crime, and if so, what part of international law has considered that?

  Professor Scobbie: You are not going to like this answer: it depends on the circumstances. Could this be suicide bombings as in kamikaze pilots?

  Mr Heathcoat-Amory: Yes.

  Professor Scobbie: Which could be seen as a perfectly legitimate weapon. Suicide bombings against a civilian population are unlawful. The war crime, or the breach of the laws of armed conflict, involved would be a breach of the prohibition of wilful killing or the direct targeting of civilians.

5   Note by witness: The issue is covered by Protocol I on Non-Detectable Fragments made to the 1980 Convention on Certain Conventional Weapons. The entire text of this Protocol provides: "It is prohibited to use any weapon the primary effect of which is to injure by fragments which in the human body escape detection by X-rays". The Protocol therefore imposes an absolute prohibition. There is no qualification of indiscriminate use. Israel became a party to this Protocol in March 1995. Back

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